Americans don’t like protest marches. The American political establishment hates protest marches. So there’s much relief over the Supreme Court’s (in)action on same-sex marriage earlier this week. People may be writing passionate tweets and Facebook updates, but they’re not hurling bottles at anyone.
On Monday, the Supreme Court declined to review lower-court rulings that threw out bans on same-sex marriage in five states. (Another federal circuit court tossed out bans in Idaho and Nevada on Tuesday, meaning gay marriage is now legal in up to 35 states.) This means no possibility of mass protests in Milwaukee or Salt Lake City over the possibility of marriage rights for gays and lesbians being rolled back. It also means that opponents of gay marriage do not yet have — and may never get — another opportunity to plead their case before the nation’s highest court. A mass rally by gay marriage opponents on the National Mall would serve little purpose at this point.
So much of American politics makes sense if you work from the assumption that the one objective shared by practically everyone in Washington is to prevent political unrest, even in the relatively peaceful form now seen in Hong Kong. The incremental establishment of same-sex marriage in the United States has been a classic example of this focus on keeping the peace.
After the state supreme court in Massachusetts legalized same-sex marriage in 2003, even longtime allies of the LGBT community (Barack Obama, Hillary Clinton, John Kerry, etc.) balked at the notion of marriage equality. No one knew what the backlash would be like, and few people wanted to find out. In Massachusetts, there was talk not only of a constitutional amendment overturning the decision, but also of changing the state supreme court from an appointed to an elected body. The legislature’s consideration of a constitutional ban, which stretched out for years because of the mechanics of passing an amendment, did attract spirited crowds from both sides of the issue to the State House, but there was no significant violence or traffic blockages. And after a few years of gay couples getting married in the state, opposition fizzled out.
That’s what all but die-hard opponents to same-sex marriage are counting on. Walter E. Dellinger III, who was acting solicitor general during the Clinton administration, suggested to the New York Times this week that the Supreme Court is merely waiting for a cooling-off period before it sets a national standard: “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.” Perhaps the justices want to avoid a repeat of the large protests in France following that country’s legalization of same-sex marriage.
Few legal scholars think the court will risk a backlash by trying to turn back the clock. “The Same-Sex Marriage Fight Is Over,” writes University of Baltimore law professor Garrett Epps at the Atlantic: “I will not believe … that this Court will allow thousands of couples nationwide to celebrate marriages, change names, jointly adopt children, become legally one family — and then, in an opinion later in the term, baldly announce that their marriages are in jeopardy or even void.”
Neither major political party wants to see an army of forcibly divorced couples, with their children, trying to get near their hermetically sealed conventions in 2016. Even Ted Cruz, who seems to hold out hope that a never-say-die opposition to gay marriage can help him win the Iowa Republican caucuses, would want the issue to go away if he somehow becomes the GOP nominee. The more typical Republican response to this week’s events came from Wisconsin Gov. Scott Walker, who told reporters, “We’re not going to look back,” Walker told reporters. “We’re just going to enforce the law as we said we would all along if that’s what the court ruled.” And in Utah, the Mormon leader Elder Dallin H. Oaks reaffirmed his church’s opposition to same-sex marriage but declined to take the stance of a culture warrior: “Though we may disagree, we should not be disagreeable. Our stands and communications on controversial topics should not be contentious.”
One of the week’s most Braveheart-like reactions came from former Arkansas Gov. Mike Huckabee, who offered a novel legal theory on his website: that the federal appeals courts who have struck down same-sex marriage bans are just bluffing. “The people’s representatives have to pass enabling legislation to authorize same sex marriage,” he writes, “and the President (or Governor in the case of the state) has to sign it. Otherwise, it remains the court’s opinion. It is NOT the ‘law of the land’ as is often heralded.” As the New Republic’s Brian Beutler put it, “Huckabee is all in on the idea that Republican governors can continue to stand athwart same-sex marriage until gay people pry the veto pens from their cold dead hands.”
Huckabee, more likely maintaining his high profile as an author and Fox News host than seriously preparing for another presidential run, will not by joined by many people with actual political power. No governor or mayor will want to be associated with scenes of people yelling outside marriage-license offices because the clerks within refuse to follow (or insist on following) what almost everyone considers to be the law.
A lot of Americans, including judges and elected officials, sympathized with the advocates of marriage equality more than a decade ago but didn’t want to stir things up. Now that same-sex marriage is legal in most of the country, there will be little appetite for a spirited debate on rolling back rights, or for shielding a few holdout states from a national consensus. People just want to be left alone.